The Second Respondent was the Hon Gary Hardgrave, formerly the acting Minister for Immigration and Multicultural and Indigenous Affairs.

The Applicant, Mr Fernando, is a citizen Sri Lanka. He arrived in Australia in 1989. In 1995, Mr Fernando was granted a permanent residency visa. In July 1998, he was convicted of sexual assault and sentenced to eight years imprisonment. By reason of his criminal conviction for a serious crime, Mr Fernando was at risk of having his permanent residency visa cancelled on character grounds under Section 501(2) of the Migration Act 1958 (Cth), and deported.

Departmental officers learned that Mr Fernanado was due for release from Acacia prison and then embarked on a process aimed at having the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) make a decision whether to cancel Mr Fernando’s permanent residency visa under Section 502(2).

As part of that process, the departmental officers served on Mr Fernando a notice dated 17 September 2003, calling on him to provide submissions within 14 days as to why the Minister should not cancel his visa

Mr Fernando was in prison at the time he was invited to make the submissions. Mr Fernando posted the submissions within the 14 day period referred to in the notice, but the submissions had not arrived in Canberra by 3 October 2003.

On 3 October 2003, the second respondent was the Acting Minister for Immigration and Multicultural and Indigenous Affairs – the Minister, Mr Phillip Ruddock, being out of Australia at that time. The Acting Minister, using the minute and issues paper provided by the departmental officers, cancelled Mr Fernando’s visa on 3 October 2003, without considering Mr Fernando’s submissions, which were still in transit.

By an application made to this Court in October 2003, Mr Fernando challenged the lawfulness of the Acting Minister’s decision to cancel his permanent residency visa on the grounds that he had been denied procedural fairness; and sought orders setting aside the decision to cancel his visa.

Amongst other actions Mr Fernando pleaded Misfeasance in Public Office.

MISFEASANCE IN PUBLIC OFFICE

In the case of Sanders v Snell [1998] HCA 64 at 346-347, at [42], Gleeson CJ, Gaudron, Kirby and Hayne JJ observed as follows in relation to the tort of misfeasance in public office:

It is an intentional tort. As was said in Mengel:

…the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. (Footnotes omitted.)

Mr Fernando alleged that the Acting Minister had made the decision to cancel Mr Fernando’s visa when the Acting Minister knew that he had no jurisdiction to do so or, with reckless disregard to the question of whether or not he had jurisdiction to do so. The Judge understood this to be a claim falling within the second form of the tort referred to in the observations of the High Court in Sanders in the preceding paragraph.

Mr Fernando alleged that the Acting Minister lacked the jurisdiction to cancel his visa because he had not been afforded procedural fairness in relation to the making of the cancellation decision by the Acting Minister

The essential elements of procedural fairness are fairness and detachment. These requirements find expression in the two rules of procedural fairness. The first is the hearing rule (audi alteram partem), which is the requirement to give notice to the person affected by a decision that a decision is to be made, to disclose information or material on which the decision maker proposes to rely, and to allow an opportunity to put a case. The second is the rule against bias (nemo iudex in causa sua), which is the rule that the decision maker be free of actual bias or prejudgment, or the perception of prejudgment.

In the Fernando case it was the first rule that came into play.

The Honourable Judge Siopis found from the facts and circumstances that at the time that the Acting Minister made the decision to cancel the visa, he knew that Mr Fernando had not been afforded procedural fairness in relation to the decision, and he knew that the failure to afford procedural fairness went to the lawfulness of his exercise of the power to cancel Mr Fernando’s visa.

The Honourable Judge Siopis then ruled that the Acting Minister engaged in misfeasance in public office which caused Mr Fernando to be unlawfully detained for one day. It follows, that the Acting Minister is liable to Mr Fernando for the sum of $3,000.00.